Citation Nr: 1145529
Decision Date: 12/14/11 Archive Date: 12/21/11
DOCKET NO. 08-18 552 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Manila,
the Republic of the Philippines
THE ISSUE
Entitlement to an effective date earlier than July 27, 2005 for grant of special monthly compensation (SMC) based on the need for aid and attendance.
(The issue of entitlement to waiver of recovery of overpayment to the Veteran in the amount of $11,985.00, to include the validity of the overpayment, will be addressed in a separate Board decision.)
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. Cramp, Counsel
INTRODUCTION
Appellant (the Veteran) had active service from November 1985 to June 1991.
This appeal comes before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the RO in Manila, the Republic of the Philippines.
FINDINGS OF FACT
1. All notification and development action needed to fairly adjudicate the appeal has been accomplished.
2. New and material evidence was not received within the one-year appeal periods following notification of the July 2000 and August 2003 denials of the claim for SMC based on the need for aid and attendance.
3. The earliest date of a pending claim for SMC based on the need for aid and attendance is July 27, 2005.
4. Based on evidence received after the date of claim, it became ascertainable that the Veteran was in need of aid and attendance more than one year prior to the July 27, 2005 date of claim.
CONCLUSION OF LAW
The criteria for an effective date prior to July 27, 2005 for SMC based on the need for aid and attendance are not met. 38 U.S.C.A. §§ 1114(l), 5103, 5103A, 5107, 5110(b)(2), 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.350(b)(3), 3.352, 3.400(o)(2), 3.401(a)(1) (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008).
The United States Court of Appeals for Veterans Claims (CAVC) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.
In an August 2005 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for SMC based on the need for aid and attendance, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. Additional notice in May 2006 included provisions for the effective date of the claim.
The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes pertinent VA and private treatment records, examination reports, as well as the Veteran's written assertions and personal hearing testimony.
In addition, the Veteran was afforded a VA aid and attendance examination in conjunction with the claim. This examination was adequate because it was performed by a medical professional based on solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The resulting diagnoses and rationales were consistent with the examination and the record. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008).
Analysis of Earlier Effective Date
The effective date statute and regulations provide that the proper effective date for increased rating claims is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim for increased rating. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim for increase. Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. The Federal Circuit recently reaffirmed that "the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010).
The effective date for aid and attendance benefits, except as provided in 38 C.F.R. § 3.400(o)(2), is the date of receipt of claim or date entitlement arose, whichever is later. However, when an award of pension or compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional pension or compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award's retroactive period for which entitlement to the additional benefit is established. 38 C.F.R. § 3.401(a)(1).
In this case, the Veteran had sought SMC based on aid and attendance well prior to the current claim. Claims were previously denied in July 2000 and August 2003 RO rating decisions. The Veteran did not appeal those decisions. While he did submit additional medical records within a year of the July 31, 2000 notice of the denial of his claim, and within a year of the August 27, 2003 notice of the denial of the claim, the Board finds that this evidence did not establish that the Veteran was so helpless as to need regular aid and attendance. The records, consisting of private treatment and hospital records, simply showed continuing treatment for the effects of known disabilities, i.e., neurogenic bladder, erectile dysfunction, and back disabilities. As addressed in greater detail below, the existence of the cystostomy tube was well known at this time, as was the requirement of flushing of the cystostomy tube. While this would later prove to be the basis for the grant of SMC, the opinion evidence in July 2000, in particular a June 2000 VA aid and attendance examiner's opinion, was that this did not necessitate aid and attendance. The crucial evidence in the grant of SMC was a September 2005 opinion which interpreted the known facts differently than did the June 2000 opinion. The Board finds in particular that the evidence received within a year of the July 2000 and August 2003 decisions did not demonstrate that it was necessary or even recommended that the flushing of the cystostomy tube should be done by a medical or paramedical individual under a hospital or clinical setting where proper aseptic technique could be observed. The September 2005 VA opinion to this effect was the ultimate basis for the grant of SMC based on the need for aid and attendance. As the evidence did not address the unestablished fact central to the July 2000 and August 2003 denials, the Board finds that the evidence received within a year of those denials is not new and material regarding the need for aid and attendance. See 38 C.F.R. § 3.156(a),(b).
Accordingly, the Board finds that finality attaches to the July 2000 and August 2003 decisions. See 38 C.F.R. § 3.156(b) (2011). For the Board now to address the same issues would be to allow a freestanding claim, which vitiates the rule of finality. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). Where no exceptions apply, if a claimant desires an effective date earlier than that assigned in a RO decision, the claimant must perfect a timely appeal as to that decision. Otherwise, the decision becomes final and the only basis for challenging the effective date is clear and unmistakable error (CUE). The Veteran has not alleged or properly pled CUE in the July 2000 or August 2003 decisions, and that matter is not before the Board here.
Following the August 2003 decision, the Veteran filed a claim on June 15, 2005 for service connection for renal failure. The next claim for SMC based on aid and attendance was received on July 27, 2005. The Veteran does not assert that subsequent to the August 2003 decision he filed an earlier claim than the July 27, 2005 claim for SMC for aid and attendance. His essential contention is that the conditions which resulted in the need for aid and attendance existed well prior to the date of claim.
As noted above, the date that entitlement arose is only used as the effective date if such entitlement arose within a year of the date of claim. Therefore, to the extent the Veteran seeks an effective date more than a year prior to the date of claim for SMC for aid and attendance, such a request lacks legal merit.
Turning to the date that entitlement arose to SMC for aid and attendance, the following will be accorded consideration in determining the need for regular aid and attendance under 38 C.F.R. § 3.351(c)(3): inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment.
It is not required that all of the disabling conditions enumerated be found to exist before a favorable rating may be made. The particular personal functions which a claimant is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the claimant is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. See 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.352(a).
By way of history, the evidence of record indicates that the Veteran incurred neurogenic bladder (bladder sphincter dyssynergia) following an October 1994 anterior discectomy and fusion for thoracic myelopathy. He underwent cystostomy surgery in May 1995 and required an indwelling catheter. In August 1999, due to recurrent infections and bladder atrophy resulting from reliance on the catheter, he underwent urinary bladder augmentation surgery with creation of an ileal pouch and cutaneous ileal stoma. The stoma was closed in May 2003 due to recurrent infections and he reverted to intermittent catheterizations. He subsequently developed difficulty voiding, and in November 2003, the ileal stoma was reopened necessitating daily flushing and cleaning to prevent infections.
Here, the determining factor in the decision to grant SMC based on the need for aid and attendance was a September 2005 opinion by a VA gastroenterology intern that the Veteran's need for aid and attendance is based on the daily requirement of flushing of his cystostomy tube, which should be done by a medical or paramedical individual under a hospital or clinical setting where proper aseptic technique can be observed. Prior to this opinion, although the medical evidence established the presence of the cystostomy tube, and established that it required daily cleaning, the evidence did not establish that this procedure necessitated the aid and attendance of another person so as to meet the criteria for SMC. Indeed a June 2000 aid and attendance examiner found just the opposite - that the Veteran was independent in activities of daily living, including toileting, and was capable of protecting himself from the hazards of his environment.
Based on the September 2005 opinion and the Veteran's assertions, the Board finds that the Veteran has been in need of aid and attendance more than one year prior to the current effective date of July 27, 2005. As the September 2005 opinion cites the cystostomy tube as the basis for the need for aid and attendance, it would appear that this condition existed at least since the 2003 reopening of the cystostomy tube. Indeed, while the June 2000 aid and attendance examination found no need for aid and attendance, it was specifically noted on the report that the Veteran thought he required aid and attendance for daily urinary bladder irrigation and to maintain aseptic technique.
As the increase in disability that necessitated SMC for aid and attendance occurred more than one year prior to the date of claim, the Board finds that the appropriate effective date is the July 27, 2005 date of claim for SMC for aid and attendance, and no earlier effective date is warranted. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Board also finds that, as the increase in disability did not occur within the year prior to the date of claim, the provisions of 38 C.F.R. § 3.401(a)(1) do not allow for any earlier effective date for the grant of SMC based on the need for aid and attendance.
In reaching these findings, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
ORDER
An effective date earlier than July 27, 2005 for the assignment of SMC based on the need for aid and attendance is denied.
____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs